Israel
Up Against The Wall
By Ian Williams
14 July, 2004
Asia Times
People
who attack the World Court for its July 9 opinion on the Israeli wall
in the Occupied Territories should beware.
In doing so, they
are calling into question the United Nations Charter, and the whole
foundation of international law and humanitarian conventions and treaties:
which in the end are the legal basis of the state of Israel's international
recognition, and, in a broader sense, everyone else's best hope for
a global order that does not rely on anarchistic violence and force
majeure.
The court in The
Hague said in its ruling that the 600-kilometer wall, about a third
built, "severely impeded" Palestinian rights to self-rule.
It curves at points deep into the West Bank around Jewish settlements
built on land occupied in the 1967 Middle East war. The court said the
wall violated international humanitarian law and called on the UN Security
Council and General Assembly to stop the barrier's construction.
It is not often
that the court comes out with such an unequivocal opinion. Just because
it ruled against Israel and, by extension, its US protector, on every
point, does not invalidate the reasoning for the rest of the world.
Rather it is a wake-up
call to Israeli Prime Minister Ariel Sharon and his supporters in the
United States to reconsider their stands and return from orbit. You
cannot cherry-pick international law, enforcing the parts you like on
others and denying those that impinge on your interests.
The one dissenting
vote was American judge Thomas Buergenthal, who said the opinion did
not take into account Israel's need to protect itself against terrorism.
His opinion was seconded by many American politicians seemingly more
mindful of the coming presidential election in November than of ensuring
a sound and peaceful world order.
In any case, Buergenthal's
statement was economical with the truth. The court considered the issue
of Israel's security needs and the threat of terrorism in some depth
and length in its 56-page opinion - and it concluded that if Israel
wanted to build the wall, it could do so entirely legally, on its own
side of the "Green Line". However, it could not do so on illegally
occupied territory. Indeed, the court specifically excluded the small
section of the wall built in Israel from its judgment.
Presumably well-lobbied
beforehand, most of the US media reports about the case have sought
to qualify the court's opinion as "non-binding". Of course,
an authoritative statement of international law, issued by a 14-1 majority,
is non-binding only if you do not accept the applicability of international
law.
In reality, it would
be difficult to get a more authoritative decision, not least since this
opinion is being delivered to the General Assembly of the UN - with
part of the opinion being that states party to the various conventions
have a duty to enforce them on Israel.
The combination
of the court and the General Assembly is the route that led to the independence
of Namibia and sanctions against South Africa. It is the route that
led to the eventual independence of East Timor - and a route that has
kept Morocco's annexation of Western Sahara unrecognized by any other
country in the world.
It may be slow -
but such opinions are binding on all law-abiding countries. Indeed,
it was the General Assembly that voted for the partition of mandatory
Palestine into Jewish and Arab states.
The other defense
is to attack the decision as one of a kangaroo court. Just before the
hearings, Howard Meyer, an authoritative historian of the World Court,
pointed out that the lead counsel for Israel would "be Dr Shabtai
Rosenne, an Israeli diplomat and longtime observer of the ICJ [International
Court of Justice]". As a student of the court, he has written more
books about its procedures and its rulings than anyone.
In 1989, four years
after the US walked out of the courthouse in Nicaragua's case, Rosenne
wrote in an introduction to a new edition of one of his works on the
court that it had "rendered important services in the evolution
of international law through the United Nations and in the peaceful
settlement of disputes, more in the last decade than in the first 30
years of its existence ... it has performed a major service to the international
community as a whole because the need to bring international law into
line with present-day requirements is real and urgent".
As Meyer points
out, "Some kangaroo!" It does not help the detractors' case
that the Israeli Supreme Court itself ruled last month that the route
of the wall violated international humanitarian law, even it did not
go so far as to rule occupation and settlements illegal.
It is hardly biased
of the court to find that the Occupied Territories are indeed occupied
and that the settlements are illegal. That is the position that the
UN has always taken, and even the US had supported explicitly until
very recently. The Israelis beg to differ, but then Saddam Hussein decided
unilaterally that Kuwait was his 19th province and the world disagreed
with him. In the end, the world tends to win.
The Palestinians
by now may be a little bewildered. If they had sent people to place
bombs next to the wall, or launched armored bulldozers against it, they
would have been roundly condemned for terrorism. So they go to court
and find both themselves and the judges condemned for bias and worse.
In fact, there is
a lot of material in the opinion that may well provide sound precedents
for future disputes.
First of all, the
court decided that it did, indeed, despite the US and the Israeli opposition,
have the right to consider the question, and that the UN General Assembly
indeed had the right to ask it to do so. In this, as in all its other
issues, it cited numerous precedents for its reasoning.
Then the judges
voted by 14-1, with Buergenthal dissenting in each case, that:
The construction of the wall being built by Israel, the occupying power,
in the occupied Palestinian territory, including in and around East
Jerusalem, and its associated regime, are contrary to international
law.
Israel is under
an obligation to terminate its breaches of international law; it is
under an obligation to cease forthwith the works of construction of
the wall being built in the occupied Palestinian territory, including
in and around East Jerusalem, to dismantle forthwith the structure therein
situated, and to repeal or render ineffective forthwith all legislative
and regulatory acts relating thereto, in accordance with Paragraph 151
of this opinion.
Israel is under
an obligation to make reparation for all damage caused by the construction
of the wall in the occupied Palestinian territory, including in and
around East Jerusalem.
The United Nations,
and especially the General Assembly and the Security Council, should
consider what further action is required to bring to an end the illegal
situation resulting from the construction of the wall and the associated
regime, taking due account of the present advisory opinion.
In a very important
clause, Buergenthal was joined by the Dutch judge in his dissent, but
it was nevertheless passed 13-2.
All states are under
an obligation not to recognize the illegal situation resulting from
the construction of the wall and not to render aid or assistance in
maintaining the situation created by such construction; all states party
to the Fourth Geneva Convention relative to the Protection of Civilian
Persons in Time of War of August 12, 1949, have in addition the obligation,
while respecting the United Nations Charter and international law, to
ensure compliance by Israel with international humanitarian law as embodied
in that convention.
However, the decision
has many other implications that should concern all who want law-based
solutions to the world's problems.
The court had already
allowed Palestine as an entity all the privileges of a state in representation
to the court and it refers to Palestine throughout on a par with Israel
as a party to the proceedings.
It had then further
gladdened Palestinian hearts by vindicating their whole position of
reasserting international law and UN decisions on the issue, as opposed
to US and Israeli attempts since Oslo to relegate the conflict to a
bilateral issue, excluding the UN.
"Given the
powers and responsibilities of the United Nations in questions relating
to international peace and security," says the opinion, the wall
was of direct concern to the organization and while it welcomed the
"roadmap" and negotiations for a settlement, it qualified
such negotiations as being "on the basis of international law".
Interestingly, it
also finds that the International Covenant on Civil and Political Rights
applies to all people over which a state has jurisdiction, which means
that they apply to the Occupied Territories - and so one must conclude
would also apply to the US in such places as its detention center in
Guantanamo Bay, Cuba, although the court does not wander that far that
explicitly.
It also affirmed
the applicability of other conventions that the Israelis have signed
to people in the territories.
As a coup de grace,
the court notes that the wall's route has been drawn to include over
80% of the settlements - and it rules that the settlements are illegal,
a violation of the Fourth Geneva Convention, as repeated Security Council
resolutions have also termed them, not merely "unhelpful"
as the Bill Clinton reformulation of the US position has it.
In a further blow
to the expedient US position that decries the "Uniting For Peace
Resolution", which allows issues stalled by vetoes in the Security
Council to be dealt with by the General Assembly, the court ruled that
the procedure was indeed valid - and obligingly cited precedents from
the time that the US and others had pioneered the procedure.
The Palestinians
had of course used just this procedure in the face of yet another US
veto in the Security Council to ask for the opinion from the court.
An expedient Clinton administration declared the procedure as "no
longer applicable".
The next step is
for the reconvening of the Special General Assembly, probably on July
15-16 to receive the report. As the draft resolution for that session
has it, "Considering that acceptance of advisory opinions issued
by the International Court of Justice is essential to the rule of law
and reason in international affairs", so most states will vote
to accept the resolution, since to vote otherwise would indeed be tantamount
to a vote to dismantle the UN charter.
The resolution asks
the UN Secretary General to compile a register of property damage caused
by the construction - which is innocent sounding but allows a suit for
damages.
However while restating
the opinion, the draft mostly leaves the issue hanging like a sword
of Damocles - until after the American election, when the diplomatic
mills will begin to grind.
However, it does
reiterate focus on the court's finding that states have a duty to apply
international law when it is flouted.
After all, how can
democratic governments outside the US, and particularly in the European
Union, explain to their people their failure to "ensure compliance
by Israel with international humanitarian law", when told by the
world's highest court that they have an obligation to do so?
The resolution will
certainly strengthen pressure inside the EU to take a stronger line
against Israel's behavior, and the EU is a far bigger trading and commercial
partner for Israel than the US.
The nightmare for
Israel is of course South African-style sanctions, both state imposed
and consumer boycotts.
But the way to avert
that is simple, and mandated by the court. "Mr Sharon, tear down
this wall."